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A common misconception is that all employers are required to provide leave to their employees. However, whether or not an employer is required to provide leave is largely dependent on the size of the employer. For the most part, employers that employ less than 50 employees are not required to provide leave which holds an employee’s job open.  Small employers should still be mindful of how leave-related issues may impact their practices, however, as mentioned below.

Federal Family and Medical Leave Act

The federal Family and Medical Leave Act (FMLA) is a federal statute that applies to employers with 50 or more employees. If an employer has employees at multiple worksites, employees within 75 miles of each other are counted toward the threshold of 50.  Once FMLA applies to an employer, to be eligible for leave under FMLA, an employee must have been employed by his or her employer for at least twelve months and have worked more than 1,250 hours during the previous twelve months.

Federal FMLA provides an eligible employee with a total of 12 weeks of leave during a calendar year. The leave need not be paid, and can be used for a specific list of reasons, including serious health conditions, birth or adoption of a child, and active military duty.

Wisconsin Family and Medical Leave Act

The Wisconsin Family and Medical Leave Act (WFMLA) applies to employers with 50 or more permanent employees. Employers with fewer than 50 but more than 25 employees are obligated to post notices about their own leave policies. Employees who have been employed by the same employer for more than 52 consecutive weeks and have worked for at least 1,000 hours during the preceding 52 week period are eligible for leave under WFMLA.

WFMLA provides that an eligible employee may take up to six weeks of leave which need not be paid, under the current law*, in a calendar year for the birth or adoption of a child, and an eligible employee may take up to two weeks of family leave in a calendar year for the employee’s or family member’s serious health conditions.

The reasons for leave and parameters under which leave may be taken are somewhat complex and are laid out in the laws themselves.  Employers with employees in Wisconsin are generally going to be subject to both FMLA and WFMLA (not one or the other).  However, employees generally cannot stack the two different leaves on top of each other to use more than twelve weeks of leave.

* Legislation is currently pending which proposed a paid family leave insurance program.

What about employers not subject to either FMLA or WFMLA?

Even if an employer is not subject to FMLA or WFMLA, employers are still expected to follow any stated leave policies in their handbooks or any other policy manuals. For example, an employer in Wisconsin that employs only 10 employees that has a policy in its handbook stating that it provides two weeks of leave upon qualifying conditions would still be required to provide that leave.

All employers should be mindful of issues that may arise under other employment laws, including the Americans with Disabilities Act, the Wisconsin Fair Employment Act, and the Wisconsin Workers Compensation Act, which may require leave in certain situations, irrespective of FMLA or WFMLA.

Contact Jessica M. Kramer or Leslie Elkins at Kramer, Elkins & Watt, LLC for more information about how to ensure your company’s leave policies and practices comply with the law and are properly tailored to your business.